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HomeMy WebLinkAboutminutes.boa.19910606 CITY OF ASPEN BOARD OF ADJUSTMENT JUNE 6, 1991 CITY COUNCIL CHAMBERS 4.00 P.M. A G E N D A I. CASE #91-3 RONNIE MARSHALL (Continued from April 11, and May 23, 1991) If anyone needs packet information on this case please let me know. Jan--920-5063 NOTICE OF PUBLIC HEARING CASE #91-3 RONNIE MARSHALL BEFORE THE CITY OF ASPEN BOARD OF ADJUSTMENT TO ALL PROPERTY OWNERS AFFECTED BY THE REQUESTED ZONING OR USE VARIANCE DESCRIBED BELOW: Pursuant to the Official Code of Aspen of June 25, 1962, as amended, a public hearing will be held in the Council Room, City Hall, Aspen, Colorado, (or at such other place as the meeting may be then adjourned) to consider an application filed with the said Board of Adjustment requesting authority for variance from the provisions of the Zoning Ordinance, Chapter 24, Official Code of Aspen. All persons affected by the proposed variance are invited to appear and state their views, protests or objections. If you cannot appear personally at such meeting, you are urged to state your views by letter, particularly if you have objection to such variance, as the Board of Adjustment will give serious consideration to the opinions of surrounding property owners and others affected in deciding whether to grant or deny the request for variance. Particulars of the hearing and requested variance are as follows: Date and Time of Meeting: Date: April 11, 1991 Time: 4: 00 p.m. Owner for Variance: Appellant for Variance: Name: Ronnie Marshall Catherine H. McMahon Address: 320 Lake Ave, Aspen, CO. Garfield & Hecht Location or description of property: Lake Avenue, Block 103, Parcel #1, Marshall Lot Split Variance Requested: Property is located in the R-6 zoning category. A deck encroaches into the rear yard setback. Applicant is requesting that 32 inches of the deck which is above 30 inches above natural grade be permitted. (Sect. 3-101 Definition-Aspen Land Use Regs. ) Permitted projections into yards (A) (5) Uncovered porches, slabs, patios, walks and steps which do not exceed thirty (30) inches above or below natural grade. Will applicant be represented by counsel: Yes: X No: The City of Aspen Board of Adjustment 130 South Galena Street, Aspen, Colorado 81611 Remo Lavagnino, Chairman Jan Carney Deputy City Clerk RECORD OF PROCEEDINGS BOARD OF ADJUSTMENT JUNE 61 1991 Vice Chairman Charlie Paterson called meeting to order at 4: 05pm. Answering roll call were Josephine Mann, Anne Austin, Rick Head, Bill Martin and Charlie Paterson. Remo Lavagnino and Ron Erickson were excused. CASE #91-3 RONNIE MARSHALL Charlie read into the record request for variance. (attached in record) Andy Hecht, representative for applicant: The problem is that you see here the 32 inches? That exceeds the limitation in the code which says that that--the problem with the excess height for--the height in excess of 30 inches is that it becomes part of an encroachment into the setback. So any time that you have a height in excess of 30inches for a deck it now counts as an encroachment into the setback. Ronnie encroaches into the setback by 32 inches with this deck. The deck is attached to this historic landmark. It went through HPC and through Hallam Lake's consideration when there was planting done and from that perspective it is OK. Your concern of course is that it does encroach into the setback because of the definition and what we would offer as a hardship to you that because of the slope, and the slope falls off very precipitously there, the only other way to get that would be now to cut this off, create a stairway down and then go down into this sensitive vegetation and encroach into Hallam Lake which then if it was on grade it wouldn't count as encroachment into the setback. Charlie: Suppose it was 15 inches above grade? Andy: If it was 15 inches above the grade it would be OK but it doesn't work with this grade. You have to come all the way down here. If this deck is only 8 feet total. So if you cut it, it would only be 5 feet and it wouldn't be useable. At that point you would have to create a new deck of some sort. Anne: It is 8 feet from here-- Andy: All together. Anne: From here-- Andy: Yea. Right. Anne: And where these say 5 feet would not be useable. Andy: It wouldn't be a reasonable size. Charlie: 5 foot 4 inches is just a walkway. She needs a little more than a walkway. Andy: What we would like to do is create a deck that is useable. Rick: Was this plan approved by HPC as part of the permit? Andy: No. This is after the fact. This was built by a contractor named John Dyer. And he drew the pictures--by Bruce an architect but he was not involved with permitting. Dyer went ahead and built this without a permit and unknown to Ronnie and when it was completed it turned out, and I think it was Bill who identified the problem. - Bill Drueding, Zoning: No. I just red tagged it. When she did apply for a permit it was discovered that it was in the setback and I red tagged it at that point. Bill Martin: When was it built? Andy: Last summer. Ronnie Marshall: I think it was July or August. Charlie: How do you mean it is attached to a historical landmark? Andy: The house is a historical landmark. Ronnie has owned the house for 18 years and has--even before she was told of the historic nature of it she has been very sensitive to that. Josephine: It is the Mitchell house. Andy: It has been preserved and the scale of this is still very much in proportion. It is not something that alarms anybody. Rick: It alarmed somebody. Andy: These are pictures from Hallam Lake up to the house with the deck. Martin: Bill, it is interesting that the City didn't force them to remove this if it was built illegally. - Drueding: Well, as always when people do things illegally to--we give them an opportunity to comply with the law. There is also a remedy here. If you deny this application then we will require they remove the deck. But we give everybody a chance to legitimize and comply with the law as we have been doing all along. Anne: You say that HPC went along with this plan and talked about the vegetation on that. That vegetation looks like it has been there for longer than a year. Andy: There is new vegetation now. (using pictures) See the short trees coming up? Anne: I went out and walked on it. But what I am saying is when did you go to HPC and get their approval? Andy: The planting was done since the HPC approval. Anne: But was this after it was red tagged? Andy: Yes. Anne: Then you went to HPC. Andy: Yes. Anne: And then--but the deck wasn't completed when it was red tagged. Andy: Yes, it was. Anne: It was competed when it was red tagged. Andy: Yes. Anne: Then you went to HPC and they said you have to plant these trees in front of it. Andy: Right. Anne: Why was that allowed to happen if it was in violation of the code? Andy: Which? The planting? Anne: Yes. Andy: The planting is--you can do. Anne: Well, I am trying to figure out the process--the sequence here. OK. The deck is built. - - - - - - Drueding: Right. Anne: Then you are told that you don't have a permit. Andy: Right. Anne: But then don't you have to apply for a permit before you do any more work? So why would they go to HPC and plant trees? Drueding: The scenario is it is red tagged. You back up now and start the process correctly. She applies for a permit. She objects. We tell her she has to go to the Board of Adjustment. Prior to going to the Board of Adjustment you have--because it is historic, you have to get HPC approval. They mentioned the planting. The planting as far as I am concerned is not part of the deck permit. Anne: No. Drueding: So they can plant and do whatever vegetation they want. So in order for it to come to you they have to have prior approval by HPC before they can even come to you. Anne: When did they get that prior approval? ?: November 15th. Anne: Then why does it take them so long to come to us? Drueding: Because it has been postponed how many times? We have been trying to set this--I don't have any control with that. (This is the third meeting set for this hearing. The applicant was not able to attend the first 2 meetings scheduled) Anne: It just seems to me that vegetation has been there longer than that. Secretary: The first time this was scheduled was April 11th. Anne: So that still makes between the time they found that it was illegal. Isn't there some kind of time limit on it? Drueding: No, there is not. Rick: I am assuming then that the hardship then under which you have requested a variance is that it was built by someone else without-- Andy: Well, the real hardship is the topography. That to get a reasonable deck out there, we are going to have to go down and extend it much farther. The fact that we didn't know is no excuse. What we are saying is that the deck is not going to go away. 32 inches of the deck might go away and you may have stairs then that go down and create a whole new deck. But it is not going to go away and it is not obtrusive. And if you were out there it is beautiful and I don't think it is-- Anne: If it was done through the normal process and a permit had been applied for before any construction started you would have known that you couldn't do that and therefore you could have done something else. Andy: Well, but the something else we are saying-- Anne: Well, it could have been made wider this way. Turned instead of coming out over the cliff here, it could have been made wide this way to make it useable. Charlie: I don't think he could because of the round shape. Anne: But this whole thing he has built without the permit. None of this was here. Charlie: I see what you mean. The whole thing could have been closer to the house. Anne: It could have been designed differently. Andy: It couldn't have been closer to the house. ?: You could have dropped it a foot and it would have then complied. Charlie: The whole thing could have been dropped a foot. Anne: But I don't think saying that the builder didn't get a permit is really a valid excuse. Andy: Well, but we have it there. Anne: Yes, I know it is there. Andy: And we wanted to try and disturb as little vegetation as possible and there is a topography problem there. So we are just asking for that consideration. Rick: I think what he is saying is if we deny him this variance he will go back and chop off whatever they need to and then create a larger deck than what is actually there. Anne: Well, will they or won't they? We don't know that. There is an item as to whether to show "right" to have that and who says that 5 feet is not useable for this instead of 8 feet. Is that a hardship? Andy: This is 8 feet. From there to here. And we need more deck than just 5 feet. Anne: That is not necessarily their right. Andy: It is not a right. We are not asking for the variance because we want more than 5 feet. We are asking for the variance because in order to get it, we are going to have to go down and disturb vegetation, go close to Hallam Lake and this is a reasonable solution. Josephine: Bill, I would like to ask you if this stays the way it is, is it high enough back here off of the ground so that it would need any sort of a railing around it? Drueding: I don't know that. That is a Building Code question. But I assume that is probably correct. If it is more than 30 inches it would probably require a railing which is not there now. Anne: And then that railing would impact. Drueding: When this goes to the Building Dept they probably would require the railing there. Josephine: So that complicates this. Drueding: It sure does. It wasn't shown to HPC that way either. Charlie then read into record the unnecessary hardship written by the applicant's attorney. (Attached in record) Charlie asked if there were any comments from the public. There were none and he closed the public portion of the hearing. Anne: I just want to be clear on one thing. Did HPC say that they approve it as it is with the encroachment and everything. ? : I have a letter. Ronnie: And Hallam Lake approved it. Rick: Would they necessarily approve the railing? Andy: You can't see it but we would obviously have to go back to them with that issue. ?: The railing doesn't fall within the criteria. It is just the horizontal surface. Drueding: The railing falls into the criteria as far as that structure. Rick: I think if we are going to approve this thing it would have to be run by HPC. That is if we say "This is OK if they just put a railing up subject to the approval of HPC" . Charlie: That is something to do with the Building Dept and HPC and it is out of our hands. Basically we have to stay within what is being asked. This is what we are being asked for. A variance for 32 inches above grade. COMMISSIONER COMMENTS Bill Martin: Everything was done wrong. Done improperly. We make the individual down here on--going out of town take off a foot and a half of a building. Charlie: Well we have had them take off 6 inches of a building if we have to-or 3 inches. Let me put something out to you that might help. Let's talk what harm or benefit to the neighborhood, to the City of Aspen will one decision make against another. And I think that is the basis that we should kind of put our directional thinking. And let's go from that first and then you can go into other things. Bill Martin: I don't think it does any harm. No one is going to see it. The neighborhood--no one will see it. Hallam Lake--you can't get into Hallam Lake except across the other--200 yards away. Jim Hume's property is adjacent to it. Was this posted? Andy: Yes. Charlie stated there were no letters or telephone calls from the neighbors regarding this variance. And that there was no one present at the previous 2 meetings regarding this variance. Martin: I see no harm in approving this. Anne: Do you see any harm in making them conform? Martin: I think--it is a judgement factor. I think 5 feet with • railing is OK. 8 feet may be a little bit better. You can put • lounge chair instead of a straight chair. But since it is not interfering with anyone's viewplain or Hallam Lake, I see no--I don't think they should have to tear it down. Anne: Do you think it is a right that they have? Martin: No. I don't think it is a right. I think everything has been done wrong. Rick: I have to agree with Bill in that it is unsettling that this got built without a permit. I have known Ronnie for years and I don't think she would have purposely gone ahead and done something that was illegal. I think that she sends it to the HPC considerations. I do have a problem about stepping off the deck 54 inches off of that. Somebody is going to have a crash. So I would like to see a railing go up if we do approve this. What I am afraid of is that if we deny this we may get something that is more of an impact and less desireable for the neighborhood. I guess I am leaning towards granting the variance. Josephine: Well, reluctantly I guess I am leaning towards granting the variance. It is really disconcerting to find that at this stage in 1991 we are getting a case like this where something has been done--if they had just come to us before, we could have worked around in our usual way and we are very helpful to people. We can often make a suggestion that will make something workable. I just feel trapped. I feel that I have to vote for this. Anne: My concern for voting for it is that we are saying "Well, this is here and therefor we should go ahead and approve it because there is not a major impact" . That means that everyone who decides to do something illegally thinks that they can get away with it. And I could not vote for this. If they had come to us prior to building this and asked for the variance, we would have worked and looked at what was the most feasible way to do it and we would have granted them the minimum variance. Rick: I know if Remo were sitting here, he would do back flips over this in the way that we are treating this. They have never demonstrated a hardship or practical difficulty. So if there is some way that we can introduce, however feebly, some kind of hardship that we could live with ourselves--because I know he is going to come back and raise holy hell over this one. Josephine: I think my hardship was related to what you said about the uncertainty of what might be done if we deny the variance. Anne: But that is a threat. The odds of it being done are slim if they are talking about the cost of having to remove it. Reducing it down to where you could barely get out of the hot tub without falling off the edge of the cliff-that would be one thing but 5 feet is still enough room around the hot tub. Charlie: I have 2 problems here. Some good and bad. One is that it was built before--with out a building permit. Anyway it is bad. We have to make a judgement call I believe whether we think this was done with the intent to try to get something over and outside the purview of the zoning code. We have to make a judgement call on that. The other thing is--creating a precedent has never been something that we can hang our hat on. So we might turn around and say "Well, gee we don't want to create a precedent because other people are going to do the same thing. They are going to go build a illegal stuff and then come back and pretend that they made a mistake" . I don't think it is a good thing for us to hang our hat on. We have to judge each case by it's merits. And we have to make a judgement call once more as to whether the applicant had good intentions when they did it and what the intentions really were. We can't go and say "Oh, everybody is going to try to put something over on us and if we grant this now then it is a precedent and that means everybody else can do it" . We have to decide whether this was an honest mistake. I can understand how a contractor can make a mistake like that-- although they should know better. But I can see where it can happen. And I can also see where the owner would not be aware of that. You have got a lot of wild land there. It isn't like it is a lot where there is a fence over there and you can measure back. It goes right down a slope into an open area into the trees and it is kind of a situation which is unique. For that reason my opinion on a judgement call would be that I feel the applicant was honest and did not intentionally defraud the City in building this. That would be my judgement call. If I didn't feel like that was the case then I would deny the variance in this case. Anne: Don't you think anyone who has lived in the City for a number of years would know that just by reading the paper and everything would have to get building permits to do anything? Especially on a historic house. They know that HPC always has to approve stuff. Charlie: Do you mean to say that they didn't have a building permit for any of this building? Anne: No. Not at all. Charlie: They had a building permit for the hot tub. Anne: No. My understanding is they didn't have a building permit for any of the hot tub, the deck or anything. Charlie: I see. Anne: Your observation there is that it was an honest mistake. But a contractor knows that you have to get a permit. An owner knows that you have to get a permit. Charlie: Well, it is not like building a building. And I have a different feeling about things that you put out in your yard. You plant a tree you don't ask for a permit for. You build a little deck off your porch, you don't ask for a building permit. You change a doorway a little bit, you don't ask for a building permit. That isn't really a structural--house structural thing. Anne: But if you had an historic house you would know that everything has to have a permit. Charlie: Well, but it went through HPC didn't it? Anne: You can't even paint the thing with their approval. So if you can't do that you ought to know that you can't build anything either. Rick: Did HPC actually review and-- Anne: Not till after it was done. Charlie: Oh, after it was done, HPC said it was OK. Anne: Yea. After it was done. They know before they did it that they really should have. Charlie: Yes, that is something to consider. Drueding: The Planning doesn't have any problem with the way it is as presented and that is why we are here. You see this permit came in under prior to ESA--Hallam Lake ESA adoption. And so we accepted it that way because--but now if this changes that they either go down--they cut it down or they go up with railings, it has to go back to HPC and possibly ESA. I just want you to be aware of that. Anne: What is ESA? Drueding: ESA is--Hallam Lake--last year they adopted a code that says within a certain area along this ridgeline if you do any work or any construction, vegetation--whatever, it has to go through review process through the Planning & Zoning Commission. Charlie: That was because of the big house that was built in this area. Drueding: Yes, you have to have certain dimensions etc. Charlie: To protect that environment. Drueding: And this would fall into the area with any changes. Charlie: This was done before that. Drueding: It was applied for before that and they have been going along through the process with what they have applied for. Anne: But if we deny the variance and they have to cut the deck back, it wouldn't go before them for anything other than they have to put a railing up. Drueding: They may have to do it before they cut it back. Any construction now other than what they applied for. Charlie: I think that could be considered a hardship. With the new regulations. Rick: They would have to go back before that group again? Charlie: Yes. Because anything they touch now basically would have to go before them. I am not talking about HPC. I am talking about the other one. The ESA--Environmentally Sensitive Area So the other thought is what is to be gained by either refusing the variance or granting the variance. That is the other thing we have to weigh. Which one is the most beneficial to the neighborhood, to the sensitive area of Hallam Lake. There were no further member comments. Andy: I just wanted to say that Ronnie actually did not know that it was being built without a permit. And that is her statement. It absolutely could have been corrected because the whole thing could have been lowered a foot at the time. So it is not as though somebody built it saying "We won't get a permit because that way we can build it 30 inches above the ground" . That was not the intention. Charlie: So it means 2 extra steps and you would have been down one foot and the whole thing would have been conforming. That is a good point. Rick: One more question of Bill. Anything that is built below 30 inches, you don't need to get a permit for? I mean if you are going to build a deck, do you have to get a permit for that? Drueding: If it is above 30 inches, yes. Rick: If it is below 30 inches? You don't need a permit? Drueding: Yes. It is a setback issue. Many people talking at the same time here. Andy: If it is below 30 inches it is a deck that doesn't count as an encroachment. Anne: But you still have to have a permit to build it. Drueding: No. You don't have to have a permit for a deck. Normally. Rick: You don't need a permit for a deck. Drueding: Normally. You might need one for HPC or some review there for ESA now. But otherwise it is a setback thing. More than 30 inches you need it--you know that is not permitted in the setback because fire trucks could come in they would fall way down. And above 30 inches--we will give you 30 inches to go along the grade where you can still walk across. The fire equipment and the view is still there. Andy: It wouldn't need a building permit for below 30 inches. Anne: For a deck. This is a jacuzzi with a wall around it. Andy: That part is not violating anything. Drueding: No because that is within the setback. (reading from code) Uncovered porches, slabs, patios, walks or steps which do not exceed 30 inches above natural grade shall be permitted. Anne: Shall be permitted. It doesn't say that they don't need a building permit. Drueding: Right. But another part of the building code says anything less than 30 inches above grade doesn't require a building permit. Anne: But here you are building a jacuzzi which goes down more than 30 inches. Drueding: But that part was out of the setback. It was OK. If they tried to put the j acuz z i in the setback they wouldn't have been able to do it. Charlie: I would like to make a calling at this point. If we are having this much trouble understanding something that seems quite simple--imagine what a layman is going through and imagine what a carpenter is going through who is doing something. I think that this is an example. The questions you have asked and here we are, we have done this for years--12 to 20 years and I am still befuddled when I start looking at this. Can you imagine what--I wish there was a simpler way. I know we have to protect the zoning code and I understand that. But it is very difficult. I just got through remodeling my house and I tell you there are so many things to watch--rear yard setbacks and road setbacks. For the layman it is almost a--you give up. You know, give it to your lawyer. It is easy to make a mistake. That is where I am making a judgement call and why I feel positive about this. Josephine: I want to talk about what our hardship is before we get a motion in. Charlie: That would be something that the person who makes the motion would have to come up with. Andy: One hardship is that the property does fall off dramatically there. The other hardship is simply that it was done without a permit wasn't required because it was below 30 inches and I assume the contractor didn't know otherwise. And there is nothing malicious about this. MOTION Josephine: I move that there will be granted the variance requested on Case #91-3 for 32 inches of deck which is more than 30 inches above the natural grade. I move for approval of this variance because of all of the complicating factors that we have talked about today including the steepness of the slope and the fact that it was built without a permit so that we didn't get a chance to talk about this and work with it in advance. Now it seems like the best way to solve this problem is to grant a variance. Rick: I would like to expand on that in that they go back and meet the buildings codes with respect to railings and the ESA and HPC for that railing to ascertain if it is appropriate. Josephine amended her motion to include Rick's suggestion regarding the railings. Bill Martin seconded the motion. Roll Call Vote: Bill Martin, yes, Charlie Paterson, yes, Josephine Mann, yes, Rick Head, yes, Anne Austin, no. Variance was granted. - - - - Meeting was adjourned. Time was 4: 58pm. l Janice M. Carney, C'ty Deputy Cler i NOTICE OF PUBLIC HEARING CASE $91-3 RONNIE MARSHALL BEFORE' THE CI'T'Y OF ASPEN BOARD OF ADJUSTMENT TO ALL PROPERTY OWNERS AFFECTED BY THE REQUESTED ZONING OR USE VARIANCE DESCRIBED BELOW: Pursuant to the Official Code of Aspen of June 25, 1962, as amended, a public hearing will be held in the Council Room, City Hall, Aspen, CoLoi-ado, (or at such other place as the meeting may be then adjourned) to consider an application filed with the said Board of Adjustment requesting authority for variance from the provisions of the Zoning Ordinance, Chapter 24 , Official Code of Aspen. All persons affected by the proposed variance are invited to appear and state their views, protests or objections. If you cannot appear personally at such meeting, you are urged to state your views by letter, particularly if you have objection to such variance, as the Board of Adjustment will give serious consideration to the opinions of surrounding property owners and others affected in deciding whether to grant or deny the request for variance. Particulars of the hearing and requested variance are as follows: Date and Time or Meetinc : Date: April 11, 1991 Time: 4 : 00 p.in. Owner for Variance: Appellant for Variance: Name: Ronnie Marshall Catherine II. McMahon Address: 320 Luke Ave, Aspen, CO. Garfield & Ilecht Location or description of vrroperty: Lake Avenue, Bloc)c 103 , Parcel #1, Marshall Lot Split Var:i.ance K�gi,ic: tc_�1 Property is located in the R-G zoning category. A deck encroaches into the rear yard setback. Applicant is requestiinq that 32 inches of the deck which is above 30 inches ab()ve natural grade be permitted. (Sect. 3-10:1. Definition-Aspen o Land Use Regs. ) Permitted projections into yards (A) (5) Uncovered porches, slabs, patios, walks and step:, which do not exceed thirty (30) inches above or below natural grade. Will.�ippli_c ant he _represented by counsel: Yes:—X— No: TI►e City of Aspen Board of Adjustment, 130 South Galena Street, Aspen, Colorado 81G11 Remo Lavagnino, Chairman Jan Carney Deputy City Clerk EXHIBIT "A"